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This letter responds a Congressional request that we provide answers to questions relating to our September 9, 2003, testimony. In that testimony, we discussed the availability of child pornography on peer-to-peer (P2P) networks.

Among the major uses of peer-to-peer technology are: (1) File sharing, which includes applications such as Napster and KaZaA, along with commercial applications such as NextPage; (2) Instant messaging (IM), which includes applications that enable online users to communicate immediately through text messages; (3) Distributed computing, which includes applications that use the idle processing power of many computers; and (4) Collaboration applications, which enable teams in different geographic areas to work together and increase productivity. The ability of peer-to-peer software vendors to track or regulate the use of their software depends on whether the peer-to-peer network is based on a centralized model, where it is possible for the administrators of the central server to track some of the individuals' activities by monitoring their interactions with the central server or database, or a decentralized model, in which individuals find and interact directly with each other, the ability of peer-to-peer software vendors to track individuals who use their software is greatly diminished. Any user of a decentralized peer-to-peer network, including the vendors of the software, can search the network to determine the files that are being shared on the network. However, according to one major software vendor, vendors of file-sharing software have no special ability to track or regulate the actions of the users of the software. We do not know if the volume of child pornography on peer-to-peer networks is underreported. In our testimony, we cited the number of reports or tips received by the National Center for Missing and Exploited Children (NCMEC) as one indication of the volume of child pornography on peer-to-peer networks and on the Internet in general. The pornography available on peer-to-peer networks is not necessarily more dangerous than the pornography available on Web sites or through other electronic means of dissemination. Although some users of peer-to-peer networks might believe that they are sharing files anonymously, it is possible for law enforcement officials to discover the identities of individuals sharing child pornography and other illegal material on peer-to-peer networks. With peer-to-peer networks, pornography is easily accessible to children and the risk of inadvertent exposure to pornography is significant. However, pornography is also easily accessible through other electronic means, such as Web sites, and the risk of children's inadvertent exposure to pornography exists on these other mediums as well. Preventing the introduction of child pornography on a peer-to-peer network would be very difficult, but legal means exist to investigate and prosecute those sharing this material on the network. The doctrine of fair use can apply to unreleased material. The fair use doctrine is available as an affirmative defense to those who infringe on copyrighted works that have yet to be released to the public. Under copyright law, it is not only possible but also plausible that a consumer could lawfully possess "pre-release" materials. For example, software developers frequently distribute "beta" versions of software programs for the purpose of "debugging" before the release of the program for retail sale. Our work on peer-to-peer networks did not address issues concerning pre-release materials, and therefore we are unable to provide an opinion on the merits of amending the No Electronic Theft (NET) Act. We note, however, that the act's criminal penalties apply to all copyrighted works, regardless of whether they have been released to the public, and civil and statutory damages, up to $150,000 per infringement of a registered work, remain available to copyright holders regardless of whether the infringed work has been published or released.